February 27, 2013

Fitzgerald Scott was viewing exhibits inside the U.S. Supreme Court last year when a police officer confronted him and demanded he remove his jacket.

Painted on the jacket were these words: "Occupy Everywhere." The deputy chief of the Supreme Court Police, Timothy Dolan, told Scott to take off the jacket or leave the building. Scott, according to Dolan, was violating the law that restricts expression inside the high court: no signs and no demonstrations.

Dolan, according to prosecutors, warned Scott he'd be arrested if he didn't comply. Scott was charged, under District of Columbia law, with unlawful entry. (He wasn't booked on the federal law that prohibits certain expressive activity inside the Supreme Court building.) Prosecutors, however, later abandoned the case. Scott filed suit in Washington federal district court.

This afternoon, the U.S. Attorney's Office for the District of Columbia asked a federal judge in Washington to dismiss Scott's case, which claims the authorities had no basis to make an arrest. The complaint also said the jacket's "pure speech" was protected under the First Amendment.

The government's legal team said today that Dolan had ample cause to detain Scott.

"At a bare minimum, the arresting officer’s belief that probable cause existed was certainly reasonable and in good faith," an assistant U.S. attorney, Jane Lyons, said in court papers seeking the dismissal of the suit.

On the day Scott was arrested, a group of Occupy protesters were participating in a demonstration outside the Supreme Court, Lyons noted in the papers. The focus of the protesters' ire: the high court's decision in Citizens United. Eleven people were arrested at the demonstration.

Courts in Washington, Lyons said today, have repeatedly concluded that the Supreme Court, with the exception of the sidewalks around the perimeter, is a nonpublic forum when it comes to the First Amendment. Dolan, according to the government, told Scott he was free to wear his jacket outside.

Dolan said in a declaration, filed today, that "any form of demonstration has the potential to disrupt individuals working at the court or to encroach upon the contemplative experience of visitors to the court." The court, Dolan said, "is careful to avoid any appearance that it might be approving or disapproving of any particular points of view."

Lyons said Scott could have been charged with violating the federal law that restricts expression inside the Supreme Court. That law prohibits any "flag, banner or device designed or adapted to bring into public notice a party, organization or movement." The law also forbids “processions or assemblages” in the Supreme Court.

Prosecutors have successfully used that federal law to charge demonstrators. The D.C. Court of Appeals in 2011, for instance, upheld the convictions of a group of protesters—urging the closure of the prison at Guantanamo Bay—who were arrested inside the great hall of the Supreme Court.

Scott, however, wasn't part of any demonstration inside the court, his attorney, Jeffrey Light, said in an interview. There was no protest, no conduct, Light said. The resolution of the case, he said, will depend on DC law, not federal.

"This is really an issue about a message--what message is he allowed to have?" Light said.